Guaranty Mutual Life Insurance v. Seals

108 S.E. 477, 27 Ga. App. 378, 1921 Ga. App. LEXIS 909

• Court: Court of Appeals of Georgia
• Decided: September 27, 1921
• Docket: 11822
• Status: Published

Opinion

Stephens, J.

Questions as to the sufficiency of a petition can not be raised in a motion for a new trial. Where the defendant has not excepted to the sufficiency of the petition, either by demurrer or by a motion in the nature of a general demurrer to dismiss the plaintiff’s case for want of a cause of action appearing in the petition, he can not, under the general assignment of error “ that the verdict is contrary to law and against the principles of justice and equity,” in a motion for a ^new trial, insist that the petition does not set out a cause of action. Roberts v. Keeler, 111 Ga. 181 (6), 184 (30 S. E. 617); Kelly v. Strouse, 116 Ga. 872 (6), 888, 896 (43 S. E. 280). This is true even though the verdict and judgment were rendered in a case on appeal to the superior court from the justice court, and where the defendant had no opportunity to file a demurrer to the petition. This ruling is not in conflict with anything contained in headnote 5 or the corresponding division of the opinion in Kelly v. Strouse, supra.

Judgment affirmed.

Jenkins, P. J., and Hill, J., concur.